parties to the agreement, any advantage might be derived by the employee from the opportunity to exercise his trade or profession, and thereby to increase his skill or improve his acquaintance and connections, and bring himself to the attention of the public, the employer is bound to give reasonable opportunity for the performance of the work for which the employee was engaged. This principle has been chiefly applied in England for the benefit only of stage performers. 13 There seems no reason, however, why the principle should not be one of general application wherever the performance of work must be regarded as one of the advantages which the contract contemplated should enure to the employee.14 Where the employee agrees to work, and the work is a prerequisite of his right to payment of wages or salary, it seems immaterial whether the contract contains express words of agreement by the employer such as "employ" or "retain and employ," 15 for in any case the implied promise to cooperate so far as may be necessary to enable the employee

13 Fechter v. Montgomery, 33 Beav. 22 (an actor was held justified in leaving his employment at a theatre after waiting a reasonable time for opportunity to appear on the stage); Bunning v. Lyric Theatre, 71 L. T. (N. S.) 396 (the plaintiff who had been engaged to conduct a theatrical orchestra under an agreement providing that his name should appear in advertisements as conductor, was held entitled to recover when another conductor was employed, the court holding that the provision in regard to advertisements carried with it the implication that such a state of things should exist that the defendants should be in a position truthfully to make such an announcement).

14 Rubel Bronze &c. Co. v. Vos, [1918] 1 K. B. 315. In Manubens v. Leon, [1919] 1 K. B. 208, a wrongfully discharged employee was held entitled to recover damages based not only on wages payable by the defendant, but also on tips habitually paid by

customers. In Sigmon v. Goldstone, 116 N. Y. App. Div. 490, 101 N. Y. S. 984, the employee was held justified in refusing to continue as designer and foreman in a manufacturing establishment when he was not given work, although his salary was regularly paid. In Cooper ". Stronge & Warner Co., 111 Minn. 177, 27 L. R. A. (N. S.) 1011, 126 N. W. 541, changing the plaintiff from manager of a department to saleswoman was held to justify her in leav ing the employment and suing for damages though there was no reduction of salary. Cf. Turner v. Sawdon, [1901] 2 K. B. 653, where a salesman was denied a right of action for refusal to provide him with work, his stipulated salary being paid. See also infra, § 1359.

15 Such words were contained in the contracts in suit in Emmens ". Elderton, 4 H. L. Cas. 624, and Turner v. Sawdon, [1901] 2 K. B. 653.

to perform his promise, 16 involves an agreement on the part of the employer to employ, and thereby to enable the employee to earn the promised compensation. If the contract does not expressly or by implication indicate that the parties by the agreement have made it the duty of the employer to give the employee an opportunity to work, the only question should be whether employment in the sense of furnishing work for the employee is to be regarded, in view of the nature of the contract, the character of the business, and prevailing usage, as wholly for the benefit of the employer. If the employee's compensation depends on the amount of work performed, it is obvious that the advantage of the contract to the employee depends on work being furnished him. The natural implication in such a case, therefore, is that the employer is bound to furnish a reasonable supply of work."7 The implied promise of the employer to coöperate may be varied by the terms of the contract, which may define the amount of work which the employer shall give. Even though the definition in the contract makes the amount to some extent dependent on the` volition of the employer, the agree ment will not be illusory if the employer agrees that all work of the kind in question which he desires to have performed shall be done by the employee, 18 or if the employer is bound to the exercise of a reasonable judgment and is excluded from exercising mere whim or caprice.19 Usage may play an important part in determining the true interpretation of the

16 See infra, § 1292.

17 Pilkington v. Scott, 15 M. & W. 657; Queen v. Welch, 2 El. & Bl. 357, Churchward v. Regina, L. R. 1 Q. B. 173, 195; Turner v. Goldsmith, [1891] 1 Q. B. 544; Thayer v. Wadsworth, 19 Pick. 349, 352; Lewis v. Atlas, etc., Ins. Co., 61 Mo. 534; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. S. 496; Cook v. Sandford, 15 N. S. Wales L. Rep. 377. Cf. Williamson v. Taylor, 5 Q. B. 175; Moon v. Camberwell, 89 L. T. (N. S.) 595.

18 See supra, §§ 43, 104.

19 In Meyer-Bridges Co. v. American Warehouse Co., 94 Kans. 288, 146

Pac. 361, the defendant was given a right to sell corn for the plaintiff on a commission based on a selling price to be fixed by the plaintiff. The court held that the plaintiff was bound to fix prices in order to enable the defendant to sell and earn its commission; saying: "It is suggested that the plaintiff might have fixed a price impossible to be procured, but, while such a contingency has not arisen, it may be said that the law presumes that parties to contracts will act, not unreasonably, but reasonably and in good faith."

contract. Thus an agreement to retain a lawyer may involve no agreement to give him employment even though the contract provides for a higher rate of compensation if actual employment is furnished. So the contract of a theatrical understudy may not contain any implication that employment will be furnished even though the principal performer is unable to appear. 20 How far the employer when unable to provide work for the employee is excused from his obligation to give him compensation is another question, to be considered under the heading of impossibility." The point here under consideration is the existence of an obligation on the part of the employer to provide work as distinguished from an obligation to give compensation.

§ 1016. Agents' duty to obey instructions.

The minuteness of the instructions which either an agent or a servant is bound to obey may vary with the character of the employment. Not only a servant but an agent also is under a duty to obey instructions in regard to the matter of his employment so far as these instructions are not inconsistent with the terms of his contract.22 Even though the instructions are in violation of the terms of the contract with the agent, it must be remembered that unless the agency is coupled with an interest, 23 the principal always has power to revoke the authority of the agent though he may render himself liable in damages by so doing. Accordingly, it seems that, even in violation of his original contract, the principal

20 In Grimston v. Cunningham, [1894] 1 Q. B. 125, it was held that there was no obligation to furnish work unless the principal performer should leave. In Newman v. Gatti, 24 T. L. Rep. 18, it was further said that a contract to employ as understudy involved no obligation to allow the employee to act if the regular performer was unable to do so. In these cases, however, it is to be observed that the employee receives compensation as understudy though not the same compensation as where the part is played on the stage.

21 See supra, § 838; infra, §1940.

22 Adams v. Robinson, 65 Ala. 586; Whitney v. Merchants' Union Express Co., 104 Mass. 152, 6 Am. Rep. 207; Coker v. Ropes, 125 Mass. 577; Northern Assurance Co. v. Borgelt, 67 Neb. 282, 93 N. W. 226 Spatz v. Interborough Rapid Transit Co. (N. Y. Misc.) 169 N. Y. S. 458; Kraber v. Union Ins. Co., 129 Pa. 8, 18 Atl. 491, and see cases in last notes of this section.

23 See supra, § 280.

1

may give directions to the agent which the latter cannot wholly disregard. He may, it is true, refuse to obey them and retire from his agency, but he cannot continue as agent and violate them without rendering himself liable. An agent is not bound, under any circumstances, to obey instructions which require an act in violation of law, morals, or public policy.24 Indeed such an instruction if obeyed will not save the employee from personal liability.25 In case of sudden emergency where there is no sufficient time to consult the employer and ask him to revise his instructions, the agent, if he acts with reasonable prudence, may pursue a different line of conduct from that laid down by his principal. 26 This is most frequently applied in favor of the master of a ship."

27

A violation by the agent of any instructions rightfully given him will have the same effect as any breach of contractual duty; namely, he will be liable in damages for the consequences of his breach.28

Whether the employer will be justified in discharging the agent is another matter which must depend upon principles previously discussed.29 If the disobedience is persistent or wilful, or involves serious consequences, the agency may be terminated, 30

24 Brown v. Howard, 14 Johns. 119, 123.

25 Ibid.

Williams v. Shackelford, 16 Ala. 318; Greenleaf v. Moody, 13 Allen, 363; Milbank v. Dennistoun, 21 N. Y. 386.

See Catlin v. Bell, 4 Camp. 183; Forrestier v. Bordman, 1 Story, 43; Gould v. Rich, 7 Metc. 538. In Gwilliam v. Twist, [1895] 2 Q. B. 84 86, the suggestion was made by Lord Esher, that the doctrine of authority by necessity was confined to exceptional cases like those of the master of a ship or the acceptor of a bill of exchange. But there seems no reason to doubt that special circumstances might justify the application of this principle to any kind of agency.

28 Pape v. Westacott, [1894] 1 Q. B. 272; Harlan v. Ely, 68 Cal. 522, 9

Pac. 947; Union Hardware Co. v. Plume Mfg. Co., 58 Conn. 219, 20 Atl. 455; Robinson Machine Works v. Vorse, 52 Iowa, 207, 2 N. W. 1108; Clark v. Roberts, 26 Mich. 506; Sheffield v. Linn, 62 Mich. 151, 28 N. W. 761; Nichols v. Wadsworth, 40 Minn. 547, 42 N. W. 541; Zimmermann v. Heil, 86 Hun, 114, affd. 156 N. Y. 703, 51 N. E. 1094; Paul v. Grimm, 165 Pa. 139, 30 Atl. 721, 183 Pa. 330, 38 Atl. 1017; Tate v. Marco, 27 S. C. 493, 4 S. E. 71; Franklin Fire Ins. Co. v. Bradford, 201 Pa. 32, 50 Atl. 286, 55 L. R. A. 408, 88 Am. St. Rep. 470; Fuller v. Ellis, 39 Vt. 345, 94 Amer. Dec. 327.

29 See supra, §§ 812 et seq.

30 Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205. And see cases of servants in the following two sections.

§ 1017. Servants' duty of obedience.

Like the agent, the servant is bound to obey all reasonable orders of the master, and the principles involved are the same, but as the relation of master and servant involves a greater control of the master over the manner of performing the service than does the relation of principal and agent, there is more frequent opportunity for the exercise of control. Though there can be no question of the liability in damages of the servant for failure to obey any rightful order,31 the question generally raised has been the justification of the master for discharging a servant on account of some act of disobedience.

A distinction not always observed is important here between several possible kinds of disobedience:

1. Disobedience which is due merely to negligence or forgetfulness of a general order, or a particular instruction.

2. Disobedience which is wilful in the sense that the employee is conscious that he is disobeying orders but his action is not accompanied with an element of defiance or insubordination.

3. Disobedience which is accompanied with an element of insubordination and involves a direct refusal to recognize the master's authority in regard to the matter in question.

Disobedience of the last kind, though relating to a trivial matter and though causing no damage, will always justify immediate discharge.32 So trenchant a rule cannot be laid

31 Levison v. Kirk, Lane, 65, 67; Hussey v. Pusy, Sid. 298; Brown v. Smith, 12 Cush. 366.

32 Jerome v. Queen City Cycle Co., 163 N. Y. 351, 57 N. E. 485 (the superintendent of a factory absented himself for the day in violation of a specific order not to go. The court held it immaterial that no actual damage was caused by the absence); Standidge v. Lynde, 120 Ill. App. 418 (a lawyer's clerk disobeyed his employer's direction to stay after office hours to work on a brief); Degen v. Manistee &c. R. Co., 113 Mich. 66, 71 N. W. 459 (refusal by superin

tendent of street railway to reinstate an employee when ordered to do so by the president); Von Heyne v. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524 (disobedience accompanied with defiance); Green v. Watson, 60 Hun, 582, 14 N. Y. S. 820 (Refusal to work with another employee); Youngash v. Saskatchewan, etc., Co., 4 Sask. L. R. 63.

In Connell v. Gisborne Times Co., 28 N. Zeal. L. Rep. 300, the court said: "a single deliberate act of disobedience of a particular order given in a particular matter in such manner as to indicate the intention to defy the